29 May, 2018
Insights into the key native title decisions of the last 12 months
Foreword
Welcome to Ashurst's annual review of native title legal developments.
2017 was a momentous year for native title. It was both the 25th anniversary of the High Court's Mabo decision and the 50th anniversary of the 1967 referendum which saw the Constitution amended to recognise Indigenous people.
In a legal sense, the past 12 months have seen:
- the Full Federal Court's July 2017 decision in the Timber Creek compensation claim, and the High Court's February 2018 decision granting special leave to appeal on all issues. The final decision of the High Court will, we hope, deliver much needed certainty, and likely trigger many more compensation applications around Australia;
- a number of decisions on section 47B of the Native Title Act 1993 (Cth), and whether historical extinguishment can be disregarded where exploration titles existed at the time a claim is made;
- the Full Federal Court resolving the uncertainty created by the trial judge's 2016 decision in Tjiwarl, by confirming that failure to comply with the procedural requirements in certain provisions of the Native Title Act in granting tenure and interests will not affect the validity of those grants (BHP Billiton Nickel West Pty Ltd v KN (Deceased) & Ors (Tjiwarl And Tjiwarl #2) & Ors [2018] FCAFC 8). However, an application has been made for special leave to appeal to the High Court;
- the release by the Commonwealth Attorney-General of an Options Paper setting out proposals for Native Title Act (and CATSI Act) reform; and
- a number of other decisions covering a diverse range of issues affecting almost every aspect of native title law and practice.
- From an Ashurst perspective, our national team has remained at the forefront of these developments.
We have been practising in the area since Mabo, we were involved in the Wik appeal to the High Court, and we remain involved in the country's most complex native title matters. We remain the only firm in Australia ranked in Band 1 in native title in Chambers Asia-Pacific and have maintained this ranking since 2007.
We expect 2018 to be another eventful year in native title law. We encourage you to reach out to us if you would like to discuss any aspect of this publication.
Please click here to download the report.
For further information, please contact:
Leonie Flynn, Ashurst
leonie.flynn@ashurst.com
